Persuasion - The Three Layered Witness

For the purpose of litigation, a witness can be viewed as composed of three layers.  The three layers of a witness are

1. Allegation
2. Opinion
3. Basis

The A.O.B. of a witness sit one on top of the other. The top layer is the allegation. The middle layer is the opinion. The bottom layer is the basis of the opinion.

Of the three the most important is the basis. Why? The basis determines the opinion of a witness - and, hence,  the opinion of a jury - about an allegation. The basis of an opinion is the logical equivalent of a premise. The opinion of a witness is the logical equivalent of a conclusion., The allegation is the context of the basis and opinion.

The AOB way of viewing a witness dictates the evidence that a lawyer produces at trial. Of course, a trial lawyer must establish the status of a witness's opinion toward an allegation. Does the witness believe the allegation? Does the witness disbelieve it? Is the witness unsure? There is a spectrum of opinions ranging from belief at one end and disbelief at the other end with uncertainty in between. However, if the trial lawyer stopped here, the opinion would be "without legs". An opinion cannot support itself. It needs legs. An opinion "without legs" is an opinion without any evidentiary support. The lawyer conducting a direct examination of a witness brings out the basis' that supports the opinion of the witness. The lawyer conducting a cross examination bring out the "antibasis" that undermine the opinion of the witness.

As you can see, the game of litigation is played not at the allegation level, not at the opinion level but at the basis level. Litigation revolves around showing the strength or weakness of the basis of the opinion

In our next article, examples will be given to illustrate the principles articulated in our series of articles on persuasion.

The articles that have been written about persuasion in the order they ought to be read are

1. The Premise - Conclusion model of Persuasion and who must pull Excalibur from the stone (Click Here)
2. The Vocabulary of Persuasion  (Click Here)
3. Persuasion - The Property of Transference (Click Here)
4. Persuasion - The Three Layered Witness (Click Here)

Persuasion - The Property of Transference

Don't you hate it when someone throws a conclusion at you but fails to also hand over the basis that supports it? A conclusion without a basis is like a man without legs. When you see it,  shout, "Where is its legs! Where is it legs!" A conclusion without a basis cannot stand up on its own.  A conclusion without a basis is fragile. It falls to the ground and smashes itself into smithereens. A conclusion takes on the strength or weakness of its basis. If the basis is weak or nonexistent, the conclusion is weak or non-existence. If the basis is strong, the conclusion is strong.  This is the property of transference. The strength or weakness of a conclusion is transferred from the strength of weakness of its basis.

The Vocabulary of Persuasion

This is the second in a series of articles on persuasion. In the first lesson

1. we described the process of reasoning as a path made of one or more premises on which we step to a destination or conclusion and
2. we suggested that persuasion is best accomplished when person is allowed to arrive at the conclusion himself rather than having the conclusion thrust upon her by force

In this lesson we shall add additional concepts so that our framework of understanding can handle problems of persuasion. Please note that insights for the framework of understanding were obtained from The Meaning Of Meaning  by C. K. Ogden and I. A. Richards. Let us develop the vocabulary that lives within persuasion's framework of understanding.

Inside the mind of a witness is "information"; outside are “facts”; and inhabiting both worlds is a hybrid creature known as the "allegation". An allegation has some noteworthy properties.

1. One property of an allegation is polarity. There are always two versions of an allegation: a positive version and a negative version. The word, ‘not’, makes a positive allegation negative.  An example of a positive allegation is "the traffic light was red."  The negative version of the allegation is "the traffic light was not red.


2. Another property of an allegation is fidelity. Fidelity is the accuracy of an allegation when compared with “the facts”.  A high fidelity allegation corresponds to “the facts”, i.e., is true. A low fidelity allegation is contrary to “the facts”, i.e., is false.  Furthermore, it is an axiom that the fidelity of a positive allegation is the opposite of the fidelity of its negative and vice versa. Simply stated both the positive version of an allegation and its negative version cannot be true at the same time. A properly working traffic light cannot be both red and not red simultaneously. Like matter and anti-matter, the truth of one destroys the truth of the other.   A comparison of a positive and a negative allegation with "the facts" tells which is true and which is false. 


3. The last noteworthy property of an allegation is specificity. An allegation is general or particular. A general allegation allows the contribution of particulars to it. A particular allegation leaves no room for a contribution. To borrow from mathematics, a general allegation is a variable and a particular allegation is a value for the variable.
   
   Q1. The traffic light was red, correct?
   A1. Yes.
   
   In Q1, the particular comes from the interrogator. Such a question is a leading question.
   
   Q1.  What color was the traffic light?
   A1. Red.
   
   Here, the interrogator makes a general allegation. The witness is offered an opportunity to contribute the particulars. The question is a variable to which a witness is asked to supply a value. A question in the form of a variable is a non leading question.

When an allegation is brought to the attention of a witness, a witness evaluates it. A witness can believe that an allegation is true; he can disbelieve it; or he can be ambivalent to both belief and disbelief. Moreover, the certainty with which a witness makes an evaluation can vary from weak to strong. The evaluation done by a witness about an allegation is considered the opinion of a witness and varies along a spectrum. At one end of the spectrum of opinions is 100% belief; uncertainty is in the middle and 100% disbelief is at the other end. As a witness approaches the ends of the spectrum, his opinion grows stronger; as he approaches the middle, his opinion grows weaker. The location of a witness on the spectrum of opinions is one of the “somethings” that a witness tells an interrogator about an allegation.

The other “something” is the reason that moves a witness to occupy a location along the spectrum of certainty. Why does a witness believe an allegation? Why does she disbelieve it? What makes her uncertain? The answer is the basis of a witness' opinion on the spectrum of certainty. Some evidence may point to belief; other evidence may point to disbelief or the evidence may be in such conflict that a witness is uncertain.

Let us summarize the vocabulary that lives within our framework of understanding of the art of persuasion:

1. the facts: that which exists outside the mind of a witness
2. information: that which exists inside the mind of a witness
3. allegation:  a hybrid creature inhabiting the mind of a witness and existing outside it as well
   1. an allegation possesses the property of polarity: It comes in both a positive and negative version
   2. an allegation possesses the property of fidelity: It corresponds with the facts or does not
   3. an allegation possesses the property of specificity: It can be general or particular.
4. the opinion on the spectrum of certainty of a witness toward an allegation.A witness can occupy a location anywhere on the spectrum of possible opinions about an allegation.
5. the basis of a witnesses opinion. The basis of a witnesses opinion drives the witness to occupy a position on the spectrum of possible opinions about an allegation

The vocabulary needed to understand the art of persuasion is few Though few, they are valuable because they are useful. They give us a common language with which to discuss persuasion.

In the next lesson we shall explore the relationship between the opinion of a witness and its basis. We shall learn that both direct and cross examination at a trial revolves around the basis of the opinion, its strength and weakness. Stay tuned.

The Premise - Conclusion model of Persuasion and who must pull Excalibur from the stone

What persuades?  Since Aristotle, philosophers have tried to answer this question.  It is a skill that a trial lawyer ought to have, right?  If you want to put your lawyer on the spot, engage him or her in a discussion about persuasion. Ask your lawyer, 'What persuades?"  A few lawyers have thought about persuasion and, thus, have an answer ready for this question. Most do not. Even many lawyers who try cases cannot articulate their theory of persuasion. They wing it, cross their fingers and hope for the best

Over the years we at the accident law firm of Bosco and Mascolo, Esqs. LLP have developed a theory of persuasion. We don't wing it. In this blog, from time to time, we shall talk about persuasion to prove to you that we are lawyers who have at least attempted to understand how to do it.

When you contemplate persuasion, the framework to have in mind is an argument from premise to conclusion. Reasoning starts at one or more premises. A premises is a step in a path that takes you to a conclusion.  A conclusion is the destination. With this framework in mind, let us start our discussion of persuasion with the story of Excalibur, the legendary sword in the stone.  With Excalibur we shall make an analogy.  Excalibur is akin to the conclusion of an argument. 

The first secret of persuasion is that we persuade ourselves. Nobody else can persuade us.  For a person to be persuaded, that person must pull Excalibur out of the stone himself. If I try to persuade you by pulling Excalibur out of the stone myself and handing it to you, you will not become persuaded.  Hence, a good trial lawyer who understands the pseudo science of persuasion attempts to get the jury to pull Excalibur, the conclusion, from the stone of premises themselves.

This is the first lesson in persuasion. More will come.

Causation in a negligence case

Causation is always an element of a theory of liability in negligence cases. For a plaintiff to win, the injuries must be caused by the accident. 

Many years ago, the Committee in Charge of Jury Instructions changed the Causation Jury Instructions. They substituted the word, "substantial" for the word, "proximate", as a modifier of the word, "cause".  Juries today are told that the accident must be a substantial factor in bringing about the injuries.   The change of this one word makes juries think about the size of a defendant's culpable conduct when they deliberate on negligence and when they deliberate on causation. Before the change, juries only considered the size of a defendant's culpable conduct when they deliberated on negligence.

In negligence cases, a jury allocates percentages to the people who participated in an accident according to the size of their culpability. A participant who is highly culpable is assigned a higher percentage than a participant who is culpable not so much.  The total of culpability must add up to 100%.  This is how a jury accounts for the size of culpability.

Now, however, by the introduction of the word, 'substantial', a jury gets an undeserved second opportunity to take into account the size of culpability first in their deliberations on culpability and again in their deliberations on causation. 

This is akin to making a plaintiff pay the same bill twice. Double charging a plaintiff is simply not fair.

Because a judge does not explain the meaning of the word, "substantial", jurors mistakenly think it refers to the size of culpability. It does not.  The word “substantial” in the context of causation does not mean big but means “has substance” or “is real”.  Juries deliberate on causation in order to filter out 'no cause' cases. Causation deliberations are not the place for juries to filter out 'small cause' cases - that is done by the allocation of percentages.  Both "big" and "small" acts or omissions can be regarded as causes of the accident.  To be considered a cause, an act or omission must be a link in the chain of causation.  Only if an act or omission is outside of the chain of causation shall it not be considered a cause. 

Unsophisticated plaintiffs who are not aware of this defect in the causation charge fall victim to double charging.

On opening, in summation and in the request to charge, a plaintiffs attorney ought to talk about causation in the following manner. Causation is the chain of events that began somewhere, includes the defendant’s conduct and ended in the accident. In deciding the question of causation, the role of the jury is to decide whether the defendant’s conduct is a link in the chain of causation or a stranger to the chain. It is not the job of the jury to evaluate the size of the links in the chain of causation. Links in the chain of causation can be big or small. If a defendant’s conduct is a link, it is a cause of an accident no matter its size; only if a defendant’s conduct lies outside the chain of causation is a finding of no causation justified. The doctrine of causation is not intended to filter out small cause cases, only no cause cases.

John Bosco, a partner in the accident law firm of Bosco and Mascolo, Esqs. LLP, has written extensively on the subject of causation

1. Letter to the New York Law Journal July 3, 1997
2. New York State Trial Lawyers Institute's Bill of Particulars March 2000 in an article entitled, 'Size Matters'
3. Journal of the Association of the Trial Lawyers of America, Trial, December 2003 in an article entitled, 'What a difference a word makes'
4. New York State Bar Association, Torts, Insurance and Compensation Section Journal Winter 2004 Vol. 33 No. 1 in an article entitled 'Making a Lightening Bug'